At start-up, entrepreneurs often have an idealistic view of what business issues will occupy their work days. They start their businesses to enjoy freedom and flexibility yet the more their companies grow the more administration and tedious policy making consumes their work day. Pretty soon, the entrepreneurial enterprise looks like the corporate job left behind.
Fortunately, the question you ask has been tested in the courts. In each case, employers have maintained the right to ask job applicants if they smoke, and presumably, favor non-smokers over smokers in hiring decisions.
According to Thao Tiedt, an employment law partner at Ryan Swanson & Cleveland, smoking is not a protected employment category so you can ask during interviews if an applicant smokes. Companies of any size can also institute a policy against hiring smokers; of course, at the risk of overlooking some exceptionally well qualified job applicants.
It is interesting to note that at the same time smokers believe their lifestyle rights have been infringed by the increasing number of work and social venues where smoking is not permitted; non-smoking co-workers complain the opposite is true. Smokers receive preferential treatment to the extent employers allow them to take longer or more frequent breaks than non-smokers.
The best way for companies to "clear the air" about sensitive work place issues is to clearly define work rules in employment manuals or other internal communications. Enforcement should also be consistent meaning smokers who work in an administrative role, for example, should not receive more smoking break opportunities than smokers who work on a plant floor.
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